[NOTE: The following has been cross-posted on College Insurrection]
The heated and hostile reaction to evidence that there is greater black participation in politics in Southern states covered by Section 5 of the Voting Rights Act than in non-covered states, even liberal Massachusetts — especially to Chief Justice Roberts’ pointing to that evidence during the recent oral argument in Shelby County v. Holder — reveals that a surprising (at least to non-Southerners) amount of the anger expressed by proponents at the prospect of Section 5 being overturned derives from simple anti-Southern bias, a determination to punish the region for its past sins.
Now comes a Harvard law professor who unabashedly expresses that bias as a justification for retaining racial preferences in university admissions. The Harvard Crimson quotes Professor Tomiko Brown-Nagin arguing that the Supreme Court should uphold affirmative action in Fisher v. Texas because it is “the first case in which the Court will rule on an affirmative action case that arises from the South or South West, where the history of discrimination in higher education is egregious and effects of discrimination linger.”
Texas, of course, did not defend its racial preferences by saying they were necessary to overcome any continuing legacy of discrimination, no doubt at least in part because the Supreme Court has long rejected that justification. In Bakke Justice Powell’s controlling opinion specifically rejected “remedying of the effects of ‘societal discrimination'” as a justification for preference based on race, calling it “an amorphous concept of injury that may be ageless in its reach into the past.” In Wygant the Court held that “a racial preference cannot rest on broad-brush assumptions of historical discrimination.” In Croson Justice O’Connor wrote for the Court that to accept the claim
that past societal discrimination alone can serve as the basis for rigid racial preferences would be to open the door to competing claims for “remedial relief” for every disadvantaged group. The dream of a Nation of equal citizens in a society where race is irrelevant to personal opportunity and achievement would be lost in a mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs.
The propensity of so many preference proponents to continue offering the need to overcome historical discrimination as a justification for affirmative action reminds me of nothing so much as the hapless fellow who insisted on looking for something he lost where the light was good rather than where he lost it.
Professor Brown-Nagin doesn’t stop, however, with pushing a proven loser of an argument. She also patronizes Justice Kennedy by telling the Crimson that “she thinks it is possible that he will support the University of Texas’s affirmative action policy ‘if he recognizes the historical and social significance’ of the case.”
It appears that Professor Brown-Nagin believes that the only reason Justice Kennedy (or presumably anyone) could disagree with her is stupidity.